The Indian Constitution's Article 21 stipulates that everyone's life and personal freedoms are protected. It safeguards our fundamental rights to human dignity and personal liberty, as well as our ability to seek bail if detained by law authorities.

The Code of Criminal Procedure was amended in 1973 to include Section 438, which allows for anticipatory bail (hereinafter referred to as Cr.P.C or Criminal Procedure Code). It is based on a suggestion made by the Law Commission of India in its 41st report to add an anticipatory bail mechanism. "The necessity for anticipatory bail arises primarily because powerful persons occasionally try to implicate their competitors in criminal conduct," according to the report.

The 'Bail' provision, particularly anticipatory bail, is founded on the legal principle of "presumption of innocence," which states that anyone suspected of committing a crime is presumed innocent unless proven guilty. Article 11 of the Universal Declaration of Human Rights states that this is a fundamental value.

Bail definition

The term 'bail' refers to the procedure of obtaining the release of an accused person charged with a crime by securing his future appearance in court for trial and requiring him to remain within the court's jurisdiction.

Bail is defined as "the security required by a court for the release of a prisoner who must appear at a future time," according to Black's Law Dictionary. The goal of an arrest is to bring justice to the accused by bringing them before a court. However, if the same goal can be accomplished without initiating an arrest, there is no reason to infringe on his liberty. As a result, the accused person may be granted bail for conditional release.

The Criminal Procedure Code of 1973 does not define the term "bail." Only the terms "Bailable Offense" and "Non-Bailable Offense" are specified in Section 2(a) of the Criminal Procedure Code. Section 436-450 of the Criminal Procedure Code contains provisions relating to bail and bail bonds.
Bail is divided into several categories.

Offenses are divided into bailable and non-bailable categories for the purposes of bail, as detailed below

• Offenses that are subject to bail
• According to Section 2(a) of the CrPC, a bailable offence is one that is listed in the First Schedule of the Code or is listed in any other legislation as being bailable. If an accused is charged with a bailable offence, he has the right to seek bail.
• If the accused is willing to file bail, the police officer or any other authority has no jurisdiction to refuse it. A person accused of a bailable offence has the right to be released on bail at any time while under arrest without a warrant and at any stage of the proceedings under Section 436 of the CrPC 1973.

Types of bail under Cr.P.C

Regular Bail

The court orders that a person who has been arrested be released from police custody after paying the bail sum. Sections 437 and 439 of the Criminal Procedure Code allow an accused to petition for normal bail.

Interim Bail

This is a court ruling that the accused be released on temporary and short-term bail while his regular or anticipatory bail application is underway. In Rukmani Mahato vs. the State of Jharkhand, the Supreme Court noted the accused's abuse of interim bail.

Anticipatory Bail.

A direct order from the Sessions or High Court to offer pre-arrest bail to a criminal suspect. When a person suspects that they will be arrested, they might petition for anticipatory bail. An application for anticipatory bail can sometimes work against a person since it alerts an investigating agency to their involvement in a crime.

In India, there are several important variables to examine while granting anticipatory bail.
The Supreme Court has given a lengthy and exhaustive list of grounds while determining on anticipatory bail under Section 438(1) of the CrPC. The following are some of them:-

Before an arrest, the gravity of the crime and the role of the accused must be known.

It is necessary to check the accused's previous record, as well as any imprisonment he or she may have received following a conviction for a non-bailable offence. Possibility of the applicant eluding justice. Possibilities of repeating the same or similar offences. The purpose of the accusation is to harm or humiliate the applicant by arresting him. Consider the accused's precise involvement. There is a reasonable fear of tampering with evidence, witnesses, or intimidating the complaint. Standard criteria apply when anticipatory bail is granted. The accused should appear in court.

Standard criteria apply when anticipatory bail is granted

• When the accused is summoned, he or she should appear before the investigation office for questioning.
• Accused should not directly or indirectly attempt to persuade, threaten, or promise any individual involved in the case who knows the facts of the case not to provide the information to the court or investigative officer.
• Accused should not leave the country without the court's approval. Any additional requirement that the court considers appropriate.

Bail is been cancelled.
The court that granted bail can cancel it if it is judged necessary under certain conditions, according to Section 437(5) of the CrPC The Sessions Court, High Court, or Supreme Court can cancel the order suo moto, according to Section 439(2).

Bail granted to the accused is revoked, and the accused is taken into jail. An appellate court can also cancel the accused's bail and order that he or she be arrested and held in custody under Section 389(2).

Anticipatory Bail and constitution of India

Every citizen in India has a fundamental right to life and personal liberty, according to the Indian Constitution. In our Constitution, Article 21 is incorporated. The purpose of this article is not to deprive someone of their life or personal liberty unless they follow the legal procedure. As a person can not prepare their case for trial from behind the bars, so the provision of bail in law is provided, to give a fair chance to fight their case with all possible measures.

Apart from that since an accused is considered innocent until proven guilty, incarceration in any form brings disrepute to the person and restricts him from going about his daily affairs. As a result, in order to avoid su with the remedy to apply for anticipatory bail.

The Criminal Amendment Bill of 2018 added Clause 4 to Section 438. Section 438 was amended by the legislature to include four clauses. Anticipatory bail cannot be granted to a person accused of committing rape on a woman aged under 16 years, under 12 years, gang rape on a woman aged under 16 years, and gang rape of a woman aged under 12 years, all of which are punishable under Sections 376(3), 376 AB, 376 DA, and 376 DB of the Indian Penal Code (Punishment of Rape) 1860.

Rape is a heinous crime for which strict legal provisions should be in place to punish the perpetrator. However, there is a distinction between being charged and being found guilty. Because there is a good likelihood that an accused would be exonerated following a trial, limiting the right to bail goes against the spirit of justice. Rape is a severe crime, but nowadays people would go to any length to defame someone in order to exact retribution, hence the number of fake rape cases is on the rise. As a result, this provision unfairly limits the right to obtain anticipatory bail.

Conclusion
The purpose of enacting Section 438 was to protect an individual's liberty. Anticipatory bail is required when a person has grounds to suspect that he or she will be arrested on suspicion of committing a non-bailable offence. Anticipatory bail is concerned with a person's liberty and assumes that they are innocent. A five-judge Supreme Court bench led by then Chief Justice Y V Chandrachud declared in the matter of Gurbaksh Singh Sibbia vs. the State of Punjab that Section 438 (1) must be interpreted in light of Article 21 of the Constitution.

Written By: Advocate Jasdeep Kaur: Pursuing Doctorate Of Philosophy In Law, Ex Law Officer Women And Child Dept Govt Of Delhi NCT, Ex Panel Lawyer Govt Of Delhi NCT, LLM University School Of Law And Legal Studies IP University Dwarka Delhi
Ph no: 9821378225, Email: [email protected]